3 Issues to Consider in Negotiating Book Contracts

Feb 122013
 

Cookbook author Andrea Nguyen doesn’t have an agent and has never had one. “No one would take me on until Into the Vietnamese Kitchen was published in 2006. Then they said ‘I’ll work with you anytime.’”

Andrea discusses her book ideas and negotiates subsequent book contracts herself, developing trust by staying with the same publisher. “As long as I remain at Ten Speed (an imprint of Random House), I don’t feel that I need to use an agent because they deal with me fairly. If I have questions I email Aaron (Wehner, the publisher) or the attorney at Random House. I don’t feel like I need to give 15 percent to an agent forever.”

Negotiating her own contracts makes her feel empowered. “You enter into a contract because all parties want to be fairly dealt with. My mindset is, ‘What is the publisher going to do for me? And what are my responsibilities and duties?’”

Andrea’s first job out of college was to audit banks for the federal government as a bank examiner. “I had to read all the fine print and rules and regulations and try to interpret them. I lasted a year,” she recalls.

Here’s what she says are the three biggest issues for authors when reviewing contracts:

1. Should you take the largest advance possible? Not necessarily. While you need an amount that will make you comfortable, you also need to earn out. Not doing so reflects on your performance and could be a factor in your next book deal. Also, the largest possible advance means the chance of getting royalties are greatly diminished, and that is one of two income streams for authors.

2. Can you get a higher royalty percentage? If you get a smaller advance, explore higher royalties. A publisher might agree to increase them based on books sold. After the first 10,000 copies, for example, you could negotiate an increase in the royalty percentage. Doing so gives you an incentive to sell more books. Digital versions of books also pay higher royalties, so make sure they are addressed in the contract.

3. Look for hidden fees in the contract. If you have to pay for the photography out of your advance, do your agent fees come off the top? That 15 percent hurts. (Also, if you are paying the photographer, you should have a say in who the publisher selects.) Also negotiate who is paying for the indexing, which has cost me $600 to $900.

Have you ever negotiated your own contract, and if so, do you have more tips to add? Or do you think a literary agent is worth the fee because you don’t have to deal with it?

For more on book contracts, see:

  44 Responses to “3 Issues to Consider in Negotiating Book Contracts”

  1. I think it is awesome that Andrea has done so well–and that she feels empowered by doing the things an agent would do. But, I have to say–the way she presents the contract negotiation process is too simplified in my experience.

    The amount of work that the contract negotiation entails is staggering to me–and most non-agented authors I know employ a lawyer to go through the contract for them (which costs money). The contract is pages long and is filled with legal minutiae. You have to negotiate all sorts of things that aren’t your advance or your royalties: including: international sales, how many free books you get, the levels of royalties you get over time, whether or not you will pay for a photographer or whether the publisher will pay for them and do you have to earn back their advance if the publisher pays for them, etc. Unless you are skilled in these types of negotiations (and actually want to spend your time doing this) and agent is a wonderful resource.

    On top of this, my agent knows the business and she has professional relationships with all of the publishing houses. She knows who will be open to what type of proposal. She can call and editor and ask questions in a way I can’t if I’m not already contracted with them. And she is there to support me. If I have an issue that with the publisher, I call her to help solve it. She is there as a sounding board to bounce ideas off of. She helps with the book proposal process to make my proposals be the strongest they can be. Truly, my agent is worth her weight in gold and she earns and deserves the 15% that I pay her.

    • Jeanne, you make some good points that I did not ask her about. This is a short post that over-simplifies the process of negotiating a contract. I’m sure Andrea could go on for hours about all the issues. The point is that she feels comfortable figuring them out herself. It’s not for everyone, and I can fully understand why you use an agent. But perhaps by the time you get to your 4th book, you might feel different.

      • Dianne–LOL! True. One thing that is always worrying to me is that most people do not seem to have a clear idea of what agents do and avoid them for the wrong reasons. For example, most people I talk with are against using an agent because they think that they have to pay them up front (i.e., before they get any kind of book deal). As you and I know, this isn’t true for ethical agents–but it is a common misconception out there.

    • Jeanne, my experience is a highly unusual one born out of unusual circumstances. As Dianne responded, this was a short article and we boiled it down to 3 things to call out.

      Agents can be invaluable to authors, especially when doors need to be opened and points argued in tense situations. I’ve published three books with Ten Speed Press and am working on a fourth. We collaborate and they are my sounding board. It’s a relationship forged over a long period of time, with lots of give and take.

  2. It’s good to see that it’s not impossible to negotiate this stuff without an agent, contrary to what I’ve always heard – the perpetual percentage could get disheartening. While that may work for some who are familiar with working with contracts and feel confident they have their heads wrapped around all of the inherent detail, it is also useful to remember that there is always the option to find an agent (if they’ll have you) and take advantage of their knowledge, relationships and resources.
    I guess, like so much of life, it comes down to horses for courses.

    • Exactly. Not everyone can get an agent, and not every publisher works with agents exclusively. Percentages for royalties are fairly standard. It’s more of a question of the advance, and whether you can get the percentages raised based on sales.

      There is not always an option to find an agent. If the amount of money at stake is quite small, agents will not be interested. Often it’s the same amount of work that they’d do for a much bigger 15 percent commission, so it’s not worth their time.

  3. I would dare say some folks would consider me quite biased about my opinion about the value of an agent…. *However*….I always say, “It’s a good thing I can cook beans because I can’t count them.” …..And then, we go to Andrea who once, “audited banks for the federal government as a bank examiner.” That stuff makes my head spin. I can’t imagine doing my own contracts. Always great topics. Thanks to both of you for sharing. Best VA

    • Thanks Virginia. Yes, I was awestruck by that comment. I can’t imagine it either!

    • LOL, Virginia. Yup, I was tasked with figuring out financial minutia during the S&L bailout in the early 1990s. I really disliked that job but it taught me not to be scared about tiny print on tissue-thin paper — the volumes of federal banking regulations that served as our Bible.

  4. Dianne, I always love the topics you cover here! I’ve got more to say on this, but not from this iPhone keyboard. I hope to pipe back in soon! Here’s one question to tide us over. Andrea: what royalties should one expect to see with a “good” or “fair” advance and how high can an author expect them to go w a poor advance? Speaking of, what is considered a good advance in 2013 (taking the 6-figure rarities off the table)?

    Apparently I can type more than planned when so inspired.

    • Hey Martha! I’m impressed that you can reply to a comment from your phone. I have not tried that. I will let Andrea answer the question of royalties. Re a good advance, six figures is nice, but most people aren’t going to get that!

  5. These posts are always so incredibly helpful. For my first and only book so far, which wasn’t a cookbook, I dealt directly with the publisher, and it was a great experience. I didn’t earn what I thought I would, thanks to the 2008 economic collapse, but I did hire a lawyer to read through my contract. Overall, it was a positive experience. I recently had occasion to talk to an agent for a possible ghostwriting project, and the person I was working with didn’t want to deal with an agent. I didn’t feel comfortable advocating for myself in uncharted territory because ghostwriting is new turf for me, so it ultimately felt through. The agent I talked with was amazingly upfront and helpful and probably spent 10 hours on me, at least, with no return. However, I now have an ally, should I end up ever doing the type of book he typically works with. In the meantime, I am working on self-publishing a farmers’ market cookbook and while I would love an agent, the financial odds are a bit against me (at least this is what conventional cookbook publishing wisdom –and those I trust in the biz–tell me), so it looks like it’ll be me and Kickstarter this year. Thanks to Dianne and Andrea for this post.

    • Hiring a lawyer who specializes in publishing is a good idea, Carrie. They won’t deal directly with the publisher the way an agent would, but at least you’ll know what the issues are. Also, some agents are fine with taking a reduced fee to negotiate just the contract, if you already have a publisher.

      Typically with ghostwriting you are working for the author, and it’s the author who has the agent You would need to write a contract that the author signs. Perhaps the agent will think of you again when the situation arises.

      Re the self-published cookbook, good luck with that! Some people have been very successful with Kickstarter.

      • Before I signed my first book contract, I had an attorney review it so that I had some demands to make during negotiations. I *think* that Julia Child never had an agent, and relied on an attorney. Anyone verify that?

  6. Thanks so much for all of your posts Dianne. I always find them so helpful and thought provoking.
    I’m not so sure I agree with Andrea though. Having written six books – 4 without an agent and 2 with – I can definitely see the advantage of having an agent. I think that no matter how much you believe in your own work, it’s just very hard to be a tough negotiator when it comes to the money part of things. I find it’s a rare writer/artist who can feel comfortable flat out asking for more money. Agents know the market, know exactly how much they can push the envelope. And since it’s in their vested interest, they are (at least in my experience) able to get you more money.

    Also, I’m a big believer in letting everyone do what they are good at. Everyone has a skill, and I believe that creative people (whether writers, artists, or musicians) need an advocate in the market place. We are not usually natural sales people, which is one of the agent’s main strengths.

    Also, in today’s changing media world, I really do believe you need – if not an agent – then at least a lawyer to check over everything.

    • Interesting, Elizabeth, that you have worked both with and without an agent and you’re on the “with” side. I completely agree that most creative people aren’t interested in selling or dealing with the fine print. Andrea’s unusual in that respect.

      I do know an established author who worked exclusively for a publisher and negotiated her own contracts. Finally an agent won her over and got her an advance that was several times the size of what she had negotiated independently, for a different publisher!

  7. Dianne et al,

    And negotiate with your publisher the number of copies you will get for free. (It had to wrestle to get 20.) Also, will you pay for illustrations? Maps? Indexing? Incidental photography (non-food)?

    • Yes, good points. I was surprised to find that I was paying $1000 for my index when I published the second edition of my book. I had overlooked this issue in the contract and did’t remember my agent mentioning it either.

    • Definitely, David. Authors (and their agents) need to think ahead, envision the book and try to cover as many of the possibilities as possible in the contract. You had to fight for 20 free author copies? OMG, very stingy on the publisher’s part.

  8. Andrea is very lucky her first experiences with contract negotiation has been positive. Ten Speed is well known for its integrity and for treating their authors well. It is obvious Random House is continuing that practice. I dont know how Andrea ended up at Ten Speed, but her 3 subeequent contracts with them are probably all exactly the same as the first one. For a first time author, that first contract is impossible to comprehend all the details, no matter what type of job one has had before. Literary contracts are different than other types of contracts and the details are staggering. having an agent is no guarantee that the agent even knows everything! Some publishers have no problem negotiating with authors. Others will not do it. After 25 books, I definitely say always have your contracts at least read over by a literary lawyer, who will negotiate for you if you want. the flat fee spent out of pocket (a lawyer will not be getting a percentage down the line) is well worth the peace of mind and a mere fraction of what you would pay an agent. I had a lawyer review my last two contracts for the first time and I had a shock the suggestions he made on every single page to get the contract just to contract standards. Publishing is changing rapidly and just the subrights and e-rights can slip right by you. Also be sure to pay attention with your percentages…it is a percentage of WHAT…most assume you are getting a percentage of gross sales paid in the pay period they are sold. It can also be a percentage of net receipts and you are not getting paid until the publisher gets paid. Ten Speed pays on gross sales. Then if there are returns, they are taken out of that sum you were paid on the next royalty statement. There are always returns, but that doesnt mean the book is not selling well. its just industry standard procedure now. Andrea is very lucky to have a good publisher and she has made a niche for herself with a regional cuisine. Chances are she will be able to stay with Ten Speed for her whole book publishing career. If she goes to another publisher, that contract will be different than what she has now and she needs to handle that contract as a first contract. her experience could be radically different than what she has had with Ten Speed.

    • These are all excellent points, Elizabeth. I feel lucky to have such a detailed comment from someone who has published 25 books with different publishers. Thank you!

    • Elizabeth, the contracts changed a tad after Ten Speed was purchased by Random House. What I did was compare my old contracts with the new one and questioned changes and tweaks. The first contract with TSP was reviewed by a lawyer so I had a foundation to go on from there. If I were to switch publishers, yes, I’d come up with an new appropriate strategy.

    • Elizabeth,

      Do you have a literary lawyer you recommend? I’ve had good luck with Jonathan Kirsch out of LA. He’s a publishing lawyer who is also a published author.

      Martha

  9. This was interesting. This does a great job discribing what to look for in the fine print. It is a good primer on what one needs to do if and when they have a book to negotiate a deal. :)

  10. What a great post and I love that you featured Andrea, whom I admire greatly! She has been so nice, and so ‘reachable’, considering the magnitude of her popularity. And I am in awe of everyone’s comments here. Such valuable advice and information. As always, thanks for generously sharing all these, Dianne!

    • My pleasure, Betty Ann. I’m always thrilled by both the people I feature and the commenters’ thoughtful advice.

  11. My book is not exactly mainstream. I spent 6 months trying to get an agent. She spent a year trying to sell the book, but was unable to. I decided at that point, she had exhausted her possibilities and decided to do it on my own. I approached smaller publishers which I felt she passed over because there would be too little profit. I was able to get two interested publishers rather quickly. They offered rather small advances. I did choose one who was willing to follow my concept of the book. However when the economy tanked, they canceled my contract halfway through. I found another publisher rather soon after. It was an university press. They seemed to be a good fit. I had the husband of my former agent read the contract for a flat fee. He gave me lists of points to negotiate. However, since my publisher is non-profit, there’s not a lot of give on money. He warned me that it was not a great contract, but if I wanted the book published I might have to compromise on some issues. Since I had spent years writing the book, I did not want the work to go to waste and I was almost at the point of considering self-publishing. I probably don’t have a great contract but at least I got the book published without me paying for it. I got the expertise of a good editor and designer. If I had waited for an agent to sell the book, I might have never gotten the book published. There are publishers that look at proposals directly from authors, however, in my experience, they don’t pay much or any at all. For me, The Hakka Cookbook was a labor of love.

  12. One thing to note is that Andrea was accepted by Ten Speed Press, which is a great coup, and which makes it easier to continue without an agent–she’s already established with a good house. A Ten Speed Press book gets pretty decent visibility. Plus, she’s popular. However, if you’re struggling to get publishers to even pay attention to you, an agent may be the only way to go.

    My cookbook was published by a teeny tiny publisher and thus doesn’t have a lot of visibility. I do everything I can to market myself but, ultimately, a bigger house with better/more marketing capabilities (for the house, not me) would draw more attention to my book. And an agent may possibly help get me there.

    Just another aspect to consider.

    • It’s kind of a chicken and egg situation, Roberta. Agents want clients who will get a high advance, and those kind of clients are more easily sold to bigger houses. If you’re struggling to get publishers to pay attention to you, you probably won’t be able to get an agent.

  13. Andrea is right on the mark about what to look for in a cookbook contract if you’re going it alone (or with a lawyer).
    I thought I’d add to the list and share two more:
    Look at how the advance is paid out. If you want the advance to cover ingredients for testing or a special piece of equipment, but the bulk of the advance doesn’t arrive until six months after publication, you could run into some cash-flow issues. A simple fix is to ask for a frontloaded advance.
    Second, if you are a coauthor, have your own lawyer read the contributor’s agreement between you and your coauthor(s). Since this spells out what is expected of each author, sometimes these can be just as challenging to get right as the contract with the publisher.
    Thanks, Dianne and Andrea, on a great post.

    • Very good additions, Kate. Thank you. I have dealt with collaborator agreements with authors and they can definitely be challenging over sensitive topics, such as “and” or “with,” and terms of payment.

  14. Very inspiring and informative article and comments.

  15. Martha, my lawyer is Edward R Hearn of San Jose California. He is an entertainment lawyer representing musicians and song writing copyrights as well as literary authors.

  16. Thanks for the really interesting interview. I didn’t realize that authors sometimes had to pay for the photography as well! I know this must vary wildly, but what is the ballpark for cookbook photography?

    • There’s no standard answer to this, because it depends on how many photos and what the photographer charges. It’s not uncommon to pay $20-$30,000 for a full-color cookbook.

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